Honorable Edward R. Becker,
United States Circuit Judge for the Third Circuit, assumed Chief Judge
status on February 1, 1998.

Honorable Gustave Diamond,
United States District Judge for the Western District of Pennsylvania,
sitting by designation.

OPINION OF
THE COURT

BECKER, Chief Judge.

Robert and Maura Collinsgru
("the Collinsgrus"), acting on behalf of their son, Francis Collinsgru
("Francis"), appeal from the district court’s dismissal of their son’s
complaint against the Palmyra Board of Education ("Palmyra").

The Collinsgrus sought to
represent Francis in a civil suit following a state administrative decision
to deny their son special education services under the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq. (1994 &
Supp. 1997) (the "IDEA").[1]

The district court found that
it was bound by our decision in Osei-Afriyie v. Medical College of
Pa., 937 F.2d 876, 882 (3d Cir. 1991), in which we held that a non-attorney
parent could not represent his children in a tort action in federal
court. After holding that the Collinsgrus could not represent Francis
themselves, the court gave the parents thirty days in which to hire
an attorney for him. When they failed to do so, the district court dismissed
Francis’s claims without prejudice for failure to prosecute.

On appeal, the Collinsgrus
contend that Osei-Afriyie does not control because: (1) the IDEA
creates the same rights in parents that it creates in children; (2)
the claims in their son’s complaint are functionally their own; and
(3) they should therefore be allowed to proceed pro se on those claims.

We first must consider whether
we have jurisdiction over this appeal, in light of the fact that the
district court’s order was neither a final resolution on the merits
nor an interlocutory order of the type clearly appealable under 28 U.S.C.
§ 1292. We conclude that we have jurisdiction under the collateral
order exception to 28 U.S.C. § 1291. On the merits, we conclude
that the IDEA does not confer joint substantive rights on parents and
their children. We agree that the IDEA grants parents ample procedural
rights to ensure active parental involvement at all stages of the development
and implementation of a child’s individual educational program, even
through the administrative process.

We think, however, that Congress’s
decision to endow parents with these procedural rights should not be
read, under the language of the IDEA, to imply that parents also possess
the same underlying substantive rights that their children possess.
Therefore, we do not think that the Collinsgrus may properly be said
to be suing under their own cause of action. We conclude, in light of
the IDEA’s language and the statutory and common law rules guarding
against non-attorney representation of another, that parents seeking
to enforce their child’s substantive right to an appropriate education
under the IDEA may not represent their child in federal court.

I. Background

At all relevant times, the
Collinsgrus resided in Palmyra, New Jersey, and Francis attended the
Palmyra Public Schools. The Collinsgrus maintain that Francis is learning
disabled, and needs to receive an education that will accommodate his
learning disabilities, but the School Board’s Child Study Team decided
that he was ineligible to receive special education services. Accordingly,
the Collinsgrus sought special education services through the administrative
procedures established by the IDEA. Under the express provisions of
the IDEA, the Collinsgrus were able to participate in the administrative
proceedings without legal representation, though they engaged the assistance
of a non-lawyer expert. See 20 U.S.C. § 1415(h)(1). Following a
nineteen-day hearing, the Administrative Law Judge ("ALJ") determined
that Francis’s educational difficulties were not severe enough to warrant
special services.

The Collinsgrus, proceeding
pro se, filed a civil suit contesting this determination in the District
Court for the District of New Jersey. 20 U.S.C. § 1415(i)(2)(A).
In their initial complaint, the Collinsgrus alleged that Palmyra had
inadequately tested Francis for a disability and that the School Board
had interfered with an independent evaluation of his needs. In addition,
they contended that the decision by the ALJ was contrary to the law
and to the record in the case, and that the ALJ had "manufactured" testimony.
Finally, they asserted that the decision was tainted by the public policy
position of the State Commissioner of Education that too many students
in New Jersey were being labeled as learning disabled. The Board answered
the complaint, but also objected by letter to the fact that, rather
than hiring a lawyer to represent Francis, the Collinsgrus were attempting
to represent him themselves. In response, the Collinsgrus amended the
caption of their complaint to emphasize that they were asserting their
own rights as parents under the IDEA, as well as their son’s rights,
to ensure that their son received the free, appropriate education guaranteed
by the Act.

The Collinsgrus acknowledge
that they would prefer to be represented by experienced counsel rather
than continue to pursue their appeal in the federal district court pro
se. Although the Collinsgrus are represented by attorneys from the Public
Citizen Litigation Group in their appeal before this Court, these attorneys
have entered their appearance solely for the purpose of litigating the
regionally and nationally important question of the Collinsgrus’ right
to proceed pro se before the district court. The Collinsgrus concede
that they do not qualify for appointment of counsel under the in forma
pauperis statute, 28 U.S.C. § 1915 (1994). However, because of
the magnitude of this litigation, the Collinsgrus explain that they
cannot afford to retain an attorney on a normal fee basis to handle
their civil case, nor have they been able to locate an attorney willing
to take their case on a contingent fee or pro bono arrangement.

The district court held that
the Collinsgrus were not entitled to represent Francis pro se in the
civil action, reasoning that this result was compelled by our decision
in Osei-Afriyie. The district court also rejected the Collinsgrus’
effort to characterize their IDEA appeal as an assertion of their own
claims. Rather, the court ruled, Francis was the real party in interest
and must be represented by an attorney. The court gave the Collinsgrus
thirty days to retain counsel, prescribing that, if counsel were not
retained, Francis’s claims would be dismissed pursuant to Fed. R. Civ.
P. 41(b) for failure to prosecute.

When the Collinsgrus failed
to retain counsel, the district court dismissed Francis’s claims, staying
the parents’ claims pending resolution of the present appeal. Although
the Collinsgrus sought certification of an interlocutory appeal under
28 U.S.C. § 1292(b) (1994), the district court refused to certify
the issue. The court did, however, advise the Collinsgrus that they
could invoke the collateral order exception identified in Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), in order to seek
immediate interlocutory review under 28 U.S.C. § 1291 (1994). The
Collinsgrus then filed a motion in the district court requesting that
it clarify which claims they could maintain as parents and which only
their son could maintain. The district court declined to provide this
clarification, concluding that such a ruling would constitute an advisory
opinion. This appeal followed.

II. Appellate Jurisdiction
and Standard of Review

As a threshold matter, we
must determine whether we have jurisdiction to hear this appeal. The
district court dismissed only Francis’s claims for failure to prosecute
the Collinsgrus appeal from this dismissal, as well as from the related
determination that the Collinsgrus could not represent Francis themselves.
However, the Collinsgrus also made certain claims on their own behalf
under the IDEA; the district court stayed these claims until the issue
of Francis’s representation is resolved. As a result, the challenged
order did not finally resolve the merits of this case, which would have
authorized ordinary review under 28 U.S.C. § 1291, nor was the
order of an injunctive nature, such that it would have been immediately
appealable pursuant to 28 U.S.C. § 1292(a). Both the Collinsgrus
and the School Board submit that the question whether parents may represent
their children in federal civil actions following administrative findings
under the IDEA falls within the collateral order exception to the requirement
of finality imposed by § 1291. Despite the agreement of both parties,
we have an independent obligation to examine our jurisdiction to hear
this appeal. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31
(1990).

This Court has jurisdiction
over interlocutory appeals under § 1291 only if the challenged
order falls within the collateral order exception to the finality requirement
of § 1291. An appeal from a non-final order will lie if: (1) the order from which the
appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate
from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from afinal judgment.
In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997). This
test derives from the Supreme Court’s opinion in Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949).

The first prong is easily
met here. It is beyond dispute that the district court’s order of October
29, 1996, denying the Collinsgrus leave to represent their son in a
civil suit following the administrative denial of special education
rights under the IDEA, leaves no room for further consideration of this
issue by the district court. The court’s order gave the Collinsgrus
thirty days to obtain outside counsel or face dismissal of those claims
brought solely on behalf of Francis, for failure to prosecute. The Collinsgrus
have no further opportunities before the district court to reopen the
question of their ability to represent Francis.

The second prong is also satisfied.
First, the question whether the Collinsgrus may represent their son
in federal district court is entirely separate from the merits of the
underlying action. The Collinsgrus argue that they are entitled to represent
their son’s interests in federal court proceedings under 28 U.S.C. §
1654 and the IDEA. Review of this question will not require us to consider
the underlying subject matter of this action—that is, whether Palmyra
improperly denied Francis appropriate special educational services and
interfered with the parent’s procedural rights. See Devine v. Indian
River County Sch. Bd., 121 F.3d 576, 580 (11th Cir. 1997)
(stating that immediate review of parental representation would not
involve the court in the subject matter of the case), cert. denied,
118 S. Ct. 1040 (1998).

Under the second prong of
the collateral order doctrine, we must also examine the importance of
the issue to be reviewed. In re Ford Motor Co., 110 F.3d at 959. "[F]or the purposes of the Cohen test, an issue is important if the
interests that would potentially go unprotected without immediate appellate
review of that issue are significant relative to the efficiency interests
sought to be advanced by adherence to the final judgment rule." Id.
Accordingly, we must balance the importance of the Collinsgrus’ right
to represent their son in these proceedings with our interests in finality
and in avoiding piecemeal appeals. See id. at 959-60 (citing
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 503 (1989) (Scalia,
J., concurring)). Unless appellants are able to obtain review of the
question whether they may represent their son, it appears that they
will be unable to proceed in the district court on a number of claims.
Moreover, the question of the parents’ right to represent their child
under the IDEA, already litigated to the court of appeals level in other
circuits, see infra, is very important to the administration of the
IDEA. Accordingly, we conclude that the question presently before us
is of sufficient consequence to outweigh our usual interest in finality.

The final prong of the Cohen
analysis is less easily met. This prong requires that the order appealed
from be effectively unreviewable after final judgment. The Supreme Court
has imposed significant restrictions upon interlocutory appeals of orders
regarding legal representation. See Richardson-Merrell, Inc. v. Koller,
472 U.S. 424 (1985) (denying interlocutory appeal from order disqualifying
opposing counsel in civil case); Flanagan v. United States, 465
U.S. 259 (1984) (denying interlocutory appeal from an order granting
motion to disqualify counsel in a criminal case); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (denying interlocutory
appeal from an order denying motion to disqualify opposing counsel in
a civil case).

The Court of Appeals for the
Eleventh Circuit, facing the same question that we face here, found
a relevant difference between questions of representation by counsel,
which were raised in these Supreme Court cases, and questions of pro
se representation. We agree that the principles of those cases do not
prevent us from exercising jurisdiction over the question presented
in this case.

The Devine court concluded
that the question whether a party may appear pro se in proceedings before
a district court cannot be effectively reviewed on appeal."[T]he right
to represent one’s self is effectively lost if not immediately vindicated," because the harm in erroneously denying a party leave to proceed pro
se is that it injures his dignity and autonomy, something that cannot
later be repaired. 121 F.3d at 580.

Although the dignity/autonomy
rationale loses lustre in light of our ultimate holding -- that much
of what the Collinsgrus allege is their own case is actually their son’s—we
believe that a concern with the rationale is at least colorable in this
situation. We also think that questions of appealability should be decided
ex ante and not ex post.

Finally, we think that the
denial of the right to proceed pro se is analogous to an order denying
a litigant leave to proceed in forma pauperis, which is immediately
appealable. Roberts v. United States Dist. Court for the N. Dist.
of Cal., 339 U.S. 844, 845 (1950). Like denial of leave to proceed
in forma pauperis, denial of leave to proceed pro se in a civil action
may operate to bar many litigants from prosecuting or defending their
claims. Because these orders effectively close the courthouse door to
litigants, the majority of courts to consider the issue have held that
orders denying leave to proceed pro se are immediately appealable. See,
e.g., C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th
Cir. 1987); O’Reilly v. New York Times, 692 F.2d 863 (2d Cir.
1982). But see Flora Constr. Co. v. Fireman’s Fund Ins. Co.,
307 F.2d 413 (10th Cir. 1962) (denying interlocutory appeal
of court’s refusal to permit company to appear pro se by its non-attorney
president).

We conclude that, because
of the impact of the order on the litigant’s case, the district court’s
order denying the Collinsgrus leave to represent Francis is effectively
unreviewable on appeal from a final judgment, and hence we have jurisdiction
to hear this appeal.

We review for abuse of discretion
a district court’s dismissal for failure to prosecute pursuant to Rule
41(b). Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339,
341 (3d Cir. 1982). However, to the extent that the district court’s
dismissal of Francis’s claims was based upon its construction of the
IDEA, we will exercise plenary review. See In re TMI, 67 F.3d
1119, 1123 (3d Cir. 1995), cert. denied sub nom Metropolitan Edison
Co. v. Dodson, 517 U.S. 1163 (1996).

III. Discussion
A. The Right to Proceed
Pro Se

It has long been recognized that a litigant in federal court has the
right to proceed as his or her own counsel. 28 U.S.C. § 1654 (1994)
("In all courts of the United States the parties may plead and conduct
their own cases personally or by counsel . . . ."). In contrast, under
Rule 17 of the Federal Rules of Civil Procedure, minors are precluded
from determining their own legal actions. Rather, under Rule 17(c),
a representative or guardian "may sue or defend on behalf of the infant."

Our leading case regarding
the ability of parents who are not attorneys to represent their children
in federal court actions is Osei-Afriyie. Francis Osei-Afriyie
brought, on behalf of himself and his two daughters, a number of tort
claims relating to the treatment of his daughters for malaria. The case
came before this court after Osei-Afriyie, a non-attorney, had represented
himself and his daughters in a trial in the district court. A verdict
was entered against him and his daughters after the jury found that
he had not brought the case within the applicable statute of limitations.
The district court had erroneously failed to instruct the jury regarding
tolling of the statute of limitations in cases involving minors. We
directly attributed this error to Osei-Afriyie’s lack of experience
and training as a lawyer. 937 F.2d at 882. Accordingly, we vacated the
district court’s judgment to the extent that it adjudicated the children’s
claims and remanded these claims. We held that the Osei-Afriyies could
opt to obtain counsel, request appointment of counsel under the in forma
pauperis statute, or let the children wait until they were old enough
to pursue their own claims pro se, but the children could not be represented
by their father. Id. at 883. Accord Johns, 114 F.3d at 876-77;
Cheung, 906 F.2d at 62.

The requirement of representation
by counsel is based upon two cogent policy considerations. First, there
is a strong state interest in regulating the practice of law. Requiring
a minimum level of competence protects not only the party that is being
represented but also his or her adversaries and the court from poorly
drafted, inarticulate, or vexatious claims. See Brown v. Ortho Diagnostic
Sys. Inc., 868 F. Supp. 168, 172 (E.D. Va. 1994) (noting that "the
conduct of litigation by a nonlawyer creates unusual burdens not only
for the party he represents, but also for his adversaries and the court").

The second consideration is
the importance of the rights at issue during litigation and the final
nature of any adjudication on the merits. Not only is a licensed attorney
likely to be more skilled in the practice of law, but he or she is also
subject to ethical responsibilities and obligations that a lay person
is not. In addition, attorneys may be sued for malpractice. See id.

There are additional reasons
why we are reluctant to find that Congress intended parents to be able
to represent their children in IDEA cases. First, there is a well-established
presumption that Congress is understood to legislate against a background
of common-law principles. "[T]he courts may take it as given that Congress
has legislated with an expectation that the [common-law] principle will
apply except ‘when a statutory purpose to the contrary is evident.’ " Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104,
108 (1991). See also 3 Sutherland Statutory Construction § 61.03 (Norman Singer ed., 5th ed. 1992) ("When there is no
indication that Congress . . . intended to abolish a well-established
common-law doctrine through the passage of a statute, the act will be
interpreted in a way that will preserve the common-law doctrine.").
In United States v. Texas, 507 U.S. 529 (1993), the Court held
that "[i]n order to abrogate a common-law principle, the statute must
‘speak directly’ to the question addressed by the common law." Id.
at 534. Indeed, a "party contending that legislative action changed
settled law has the burden of showing that the legislature intended
such a change." Green v. Bock Laundry Mach. Co., 490 U.S. 504,
521 (1989). And in United States v. Ron Pair Enters., Inc., 489
U.S. 235 (1989), the Court noted that this rule of statutory interpretation
is particularly apt when the statutory provision at issue is ambiguous,
when prior law reflected significant policy considerations of longevity
and importance, and when a proposed interpretation is in clear conflict
with an important federal or state law. Id. at 245.

We are reluctant to assume,
absent strong evidence to the contrary, that Congress intended to override
this well- settled rule using ambiguous statutory language. In light
of the rule’s significant policy implications, we hold that the plaintiffs
have failed to meet their burden of showing Congress’s intent to change
the common-law rule against non-lawyer representation.

It is true that remedial statutes
like the IDEA are to be construed liberally. The rule of liberal construction,
however, appears to be most often applied to the remedies created, not
the parties permitted to invoke the statute. See Miller v. Robertson,
266 U.S. 243, 248 (1924) (holding that a remedial provision should be
liberally construed to give a remedy in all cases intended to be covered);
United States v. Stephens, 208 F.2d 105, 107 (5th Cir. 1953) ("[C]ourts cannot, upon the pretence [sic] of construing[a
statute], enlarge its coverage to bring within it those not expressly
or by clear intendment embraced within its terms.").

Yet another tool of statutory
construction helps us understand what Congress intended. The canon of
expressio unius est exclusio alterius means that explicit mention of
one thing in a statute implies a congressional intent to exclude similar
things that were not specifically mentioned. See Russello v. United
States, 464 U.S. 16, 23 (1983) (holding that "where Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely [sic] in the disparate inclusion or exclusion"); United States v. Azeem, 946 F.2d 13, 17 (2nd Cir. 1991) (explaining
the doctrine).

In the IDEA, Congress expressly
provided that parents were entitled to represent their child in administrative
proceedings.That it did not also carve out an exception to permit parents
to represent their child in federal proceedings suggests that Congress
only intended to let parents represent their children in administrative
proceedings.

B. Plaintiffs’ Joint Rights
Theory

The Collinsgrus proffer a
second argument, in which they contend that the analysis of whether
parents may proceed pro se on behalf of their children is different
under the IDEA than it is under a tort case like Osei-Afriyie. They
assert that because an IDEA appeal involves the nature of the education
to be afforded to their son, it is very much their own case. As parents,
they are responsible for their son’s education. See Meyer v. Nebraska,
262 U.S. 390, 400 (1923) ("[I]t is the natural duty of the parent to
give his children education suitable to their station in life. . . .").
They are entitled to make fundamental decisions regarding his education.
See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925)
(enjoining enforcement of Compulsory Education Act, which prevented
parents from choosing to send their children to private schools); Meyer,
262 U.S. at 400-03 (holding that parents are entitled to control the
education of their children and that the state may not arbitrarily proscribe
certain areas of instruction). Accordingly, the Collinsgrus assert that
they are the real parties in interest in this case.

They recognize, of course,
that Meyer and Pierce, which are grounded in the Due Process
Clause of the Federal Constitution, are insufficient to confer upon
them the right to represent their children, and that the IDEA itself
must be the source of any such right. They contend, however, that the
Act does contain authority for them to represent not only their own
rights and interests, but also, albeit indirectly, those of their son
in proceedings before the district court. We therefore turn to the IDEA
to determine whether Congress intended to create substantive rights
in the parents of disabled children.

1. Introduction

The primary purpose of the
IDEA is to ensure that all children with disabilities have available
to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs;
to ensure that the rights of children with disabilities and parents
of such children are protected; ... and to assess, and ensure the
effectiveness of, efforts to educate children with disabilities. 20
U.S.C. § 1400(d).

For the most part, the IDEA
is unambiguous as to what rights it provides to parents and children.
It clearly grants parents specific procedural rights, which they may
enforce in administrative proceedings, as well as in federal court.
Additionally, the IDEA permits parents to represent their children in
administrative due process hearings before state or local agencies.
20 U.S.C. § 1415(h)(2); 34 C.F.R. § 303.422(b)(2) (providing
that parents have the right to present evidence and examine witnesses
in administrative due process hearings held pursuant to the IDEA). The
statute also creates a right to bring a civil action in federal court
following a state administrative decision on the adequacy of the child’s
individualized education program (the "IEP"). Id. § 1415(i)(2)(A).

The Collinsgrus concede that
the IDEA does not explicitly provide parents with the right to continue
to represent their children in federal district court. Instead, they
argue that the language of the IDEA, as well as the statute’s underlying
policy concerns, exhibit Congress’s intent to create joint rights in
the child and the parents to have the child educated appropriately.
As we shall now explain, we do not think Congress displayed such an
intent, and therefore decline to import the concept of joint rights
into the IDEA byfinding that the Collinsgrus are a real party in interest
in Francis’s case. In any case turning on statutory interpretation,
our goal is to ascertain the intent of Congress. Dole v. United Steelworkers
of America, 494 U.S. 26, 35 (1990).

To accomplish this goal, we
begin by looking at the statute’s language. If the language is plain,
we need look no further. United States v. Ron Pair Enters., Inc.,
489 U.S. 235, 241 (1989). If the statutory language is ambiguous or
unclear, we may look behind the language to the legislative history
for guidance. United States v. Sherman, 150 F.3d 306, 313 (3rd
Cir. 1998).

STOPPED HERE XXX

In this case, we will require
relatively clear evidence of Congress’s intent to create joint rights
in the IDEA. We note here that the Collinsgrus’ argument is analogous
to asking us to find that they possess a private right of action under
the IDEA. As we have stated in the context of private rights of action,
"Where a statute does not explicitly create a right of action for a
particular party, a court may find such a right implied only where it
can confidently conclude Congress so intended." State of New Jersey
v. Long Island Power Auth., 30 F.3d 403, 421 (3d Cir. 1994). See
also Florida Dept. of Bus. Regulation v. Zachy’s Wine and Liquor,
Inc., 125 F.3d 1399, 1403 (11th Cir. 1997) (same), cert.
denied, 118 S. Ct. 1402 (1998). Compare Touche Ross & Co. v.
Redington, 442 U.S. 560, 572 (1979) (noting that when Congress wished
to provide a private damage remedy in the Securities Exchange Act of
1934, it knew how to do so and did so expressly).

We also note that the Supreme
Court has "long since abandoned its hospitable attitude toward implied
rights of action." Thompson v. Thompson, 484 U.S. 174, 190 (1988)
(Scalia, J., concurring). Because the case at bar is comparable to a
request for a private right of action, we take heed of this guidance;
only if we can "confidently conclude" from the text and legislative
history of the IDEA that Congress intended to create joint rights will
we find such rights in the Act.

2. Language of the IDEA

Unlike many cases that raise
issues of statutory construction, we deal here not with a particular
statutory phrase, but with language scattered throughout the statute.
The Collinsgrus point to a number of words or phrases that, they argue,
evidence Congress’s intent to treat parents as parties in interest.

First, they rely on language
in § 1415 that provided attorneys’ fees to the "parents or guardian
of a handicapped child or youth who is the prevailing party." §
1415(e)(4)(B) (1988). However, in 1997 Congress amended this section
to read, ". . . to the parents of a child with a disability who is the
prevailing party," which suggests that it is the child who should be
considered the prevailing party. Id. § 1415(i)(3)(B) (1997).

Second, they point to §
1415(e)(4) (1988), which prohibits attorneys’ fees for services performed
after settlement offers. However, § 1415(e)(4)(E) (1988) allows
for the award of attorneys’ fees "to a parent or guardian who is the
prevailing party" if he was substantially justified in rejecting the
settlement offer. (This section is now § 1415(i)(3)(E) (1997) and
refers to "a parent who is the prevailing party.") The plaintiffs contend
that these subsections make clear that an IDEA suit is the parents’
own case for 28 U.S.C. § 1654 pro se representation purposes. However,
it is just as logical to read this language simply as a reference to
the procedural cases in which parents clearly have standing as parties.

Third, the Collinsgrus point
to another discussion of attorneys’ fees that states, "[W]henever the
court finds that . . . the attorney representing the parent did not
provide to the school district the appropriate information in the due
process complaint . . . the court shall reduce . . . the amount of attorney’s
fees." Id. § 1415(i)(3)(F)(iv) (emphasis added). However, in the
same section, the statute places the notice requirement either on "the
parent of a child with a disability, or the attorney representing the
child." Id. § 1415(b)(7). While the former language may be read
to suggest that it is the parent’s case, the latter language suggests
that it is the child’s case.

Fourth, the Collinsgrus invoke
the IDEA’s introductory language, which states that one purpose of the
IDEA is "to assure that the rights of handicapped children and their
parents or guardians are protected." Id.§ 1400(c) (1988) (emphasis
added) (now § 1400(d)(1)(B), which states that one purpose is to
"ensure that the rights of children with disabilities and parents of
such children are protected"). However, as noted earlier, it is undisputed
that parents do possess rights under the IDEA; indeed, they possess
explicit rights in the form of procedural safeguards. The Collinsgrus
argue that the IDEA draws no clear distinction between procedural and
substantive rights, and cite Heldman v. Sobol, 962 F.2d 148 (2d
Cir. 1992), for this proposition. In Heldman, the court stated
that "the procedural rights, in and of themselves, form the substance
of IDEA." Id. at 155.

However, the Supreme Court
has distinguished quite clearly between substantive and procedural rights
under the Act. In Board of Education v. Rowley, 458 U.S. 176
(1982), the Court stated:

When the elaborate and highly
specific procedural safeguards embodied in § 1415 are contrasted
with the general and somewhat imprecise substantive admonitions contained
in the Act . . . [i]t seems to us no exaggeration to say that Congress
placed every bit as much emphasis upon compliance with procedures giving
parents and guardians a large measure of participation at every stage
of the administrative process . . . as it did upon the measurement of
the resulting IEP against a substantive standard. Id. at 205-06.

In short, the language of
the IDEA is unclear on its face. Some of its language can be read to
suggest that Congress intended parents and children to share the underlying
substantive right—that is, that Congress meant both to give children
a substantive right to an appropriate education and to give their parents
the substantive right to have their children receive an appropriate
education. But it is equally logical to read the IDEA the other way.
Under these circumstances, in which the Collinsgrus have not made out
their case convincingly, we turn to the legislative history of the Act
for further guidance.

3. Legislative History
of the IDEA

The legislative history offers
little additional guidance about Congress’s purported intent to create
joint rights in parents and children. On one hand, the Senate Report,
in discussing a mediation option in the 1985 amendments, states, "Although
the law has worked very well in most cases, Congress knew that there
would be instances where parents would be denied the free appropriate
public education to which their handicapped child was legally entitled
. . . ." 131 Cong. Rec. S1979 (Feb. 6, 1985) (statement of Sen. Weicker)
(emphasis added).

Earlier, in considering amendments
to the forerunner to the IDEA, the Education of the Handicapped Act
("EHA"), the Senate Report stated that "parents of [learning disabled]
children have the right to expect that individually designed instruction
to meet their children’s specific needs is available." S. Rep. No. 94-168,
at 10 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1434. See also id.
at 32, 1975 U.S.C.C.A.N. at 1456 (stating that under the Committee’s
bill, a state’s application for federal funds shall provide that "special
education and related services shall be provided at no cost to the parents
of a handicapped child"); id. at 42, 1975 U.S.C.C.A.N. at 1465 (defining
"free appropriate public education" as "special education and related
services . . . to be provided at public expense, without charge to the
parents or guardians of a handicapped child").

On the other hand, the legislative
history refers to the responsibility of the states to "develop procedures
for appointing the parent or another individual to represent the interests
of the child," which suggests that the role of the parent is to represent
solely the interests of the child, not to represent jointly held substantive
rights. S. Rep. No. 105-17 (1997), 1997 WL 258948, *49. In addition,
the Senate Report to the 1985 amendments to the EHA indicated that the
Act "established an enforceable right to free appropriate public education
for all handicapped children." 131 Cong. Rec. S1979 (1985).

The Report also noted that
the right to judicial review offers protection for those rights, thus
making the procedural rights of the parents appear derivative of the
substantive right of the child. See id. See also 121 Cong. Rec. S37412
(1975) (remarks of Sen. Stafford) (referring to "the rights of the child");
S. Rep. No. 94-168, at 7, 1975 U.S.C.C.A.N. at 1431, (discussing the
protection of "the rights of handicapped children"); S. Rep. No. 105-17,
1997 WL 258948, *56 (stating that § 1415 simplifies the process
of delivering notices to parents about their child’s rights).

We conclude that the legislative
history sheds little light on Congress’s intent to create joint rights.

The above-cited comments are
merely snippets plucked from broad discussions of the general statutory
goals of the Act and do not arise from explicit discussions of the issue
at hand. Because neither the statutory language nor the legislative
history clearly implies that Congress intended parents to have joint
rights with their children under the IDEA, we will not read joint rights
into the Act. 4.

Caselaw

We note here that the two
other courts of appeals to consider this issue have reached the same
conclusion we reach today. In Devine, the Eleventh Circuit chose
not to accept the plaintiffs’ argument that the IDEA and its regulations
authorize parental representation. 121 F.3d at 581. Instead, the court
found no indication that Congress intended to allow parents to present
evidence and examine witnesses on behalf of their children in federal
court proceedings. The court noted, "In the absence of such intent,
we are compelled to follow the usual rule—that parents who are not attorneys
may not bring a pro se action on their child’s behalf—because it helps
to ensure that children rightfully entitled to legal relief are not
deprived of their day in court by unskilled, if caring, parents." Id.
at 582.

The Second Circuit recently
raised the same issue sua sponte and reached a similar conclusion. See
Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124-25 (2d
Cir. 1998) (relying on the general rule that a non-attorney parent must
be represented by counsel in bringing an action on behalf of her child).
See also Dacyna v. Sch. Dist. of Phila., No. 92-CV-2428, 1992
WL 277993, at *1 (E.D. Pa. Oct. 2, 1992) (stating, in an IDEA case,
that a non-lawyer is not entitled to represent his children in place
of an attorney in federal court); Lawson v. Edwardsburg Public School,
751 F. Supp. 1257, 1258-59 (W.D. Mich. 1990) (holding that father could
not represent daughter’s interests in an EHA case, since he was not
an attorney).

While neither the Second nor
the Eleventh Circuit considered the argument that the IDEA creates joint
substantive rights in parents and children, we still find that the reasoning
of these courts supports our conclusion.

C. Policy Considerations

Although we believe that the
foregoing discussion is dispositive, we address a number of policy arguments
pressed by the Collinsgrus, which, they claim, make their reading of
the IDEA the most pragmatic reading of the statute.

First and foremost, they remind
us of the hard practical reality that parents are often the only available
advocates for a child’s right to an appropriate education. We acknowledge
this to be true, for most attorneys will be reluctant to take on cases
like this, characterized as they are by voluminous administrative records,
long administrative hearings, and specialized legal issues, without
a significant retainer. While we are sympathetic to this argument, it
does not carry the day against the analysis set forth above. We note
too that Congress obviously contemplated that some parents of disabled
children who were successful in their civil appeals would be unable
to pay their lawyer’s fees, as evidenced by the fact that Congress included
provisions for attorneys’ fees in the IDEA. See 20 U.S.C. § 1415(i)(3)(B)-(G).2

The Collinsgrus also argue
that the general policy behind the IDEA favors their argument. In their
view, the right of parents to control and financially support their
child’s education and the rights of children to receive an education
are so tightly interwoven that the IDEA must necessarily protect both
sets of rights and must render parents real parties in interest as to
every claim brought under the IDEA. However, we observe that under the
IDEA, a disabled child can receive a free appropriate education even
if the child has no parents; surrogates may act on behalf of a child
to the same extent that a parent could. See § 1415(b)(2). In contrast,
parents have no rights under the IDEA if they do not have a disabled
child seeking an education under that statute. To us, this is further
evidence that the rights at issue here are divisible, and not concurrent.

We conclude that the IDEA’s
language and legislative history, as well as relevant case law and policy
considerations, suggest that Congress did not clearly intend to create
joint rights in parents under the IDEA. Therefore, we will affirm the
district court’s dismissal without prejudice of Francis’s claims on
the ground that his parents may not represent him in federal court.

ROTH, Circuit Judge, concurring in part and
dissenting in part:

Although I concur with the
majority’s conclusion that the District Court’s decision here is immediately
appealable, I respectfully dissent from their conclusion in Part III
that the Collinsgrus do not have joint rights with their son under the
IDEA which they may pursue pro se in the federal courts.

I believe that these rights
arise from the special nature of the relationship between parents and
their children and from the role of parents in directing their children’s
education rights and opportunities. They are the rights of both the
parents and the children, and they are overlapping and inseparable.
In enforcing their own rights under the Act, parents are also acting
on behalf of their child. This is so because parents are responsible
for their children’s education. See Meyer v. Nebraska, 262 U.S.
390, 400 (1923) ("[I]t is the natural duty of the parent to give his
children education suitable to their station in life. . .."). Parents
are entitled to make fundamental decisions regarding that education.
See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925)
(enjoining enforcement of Compulsory Education Act preventing parents
from choosing to send their children to private schools); Meyer,
262 U.S. at 400-03 (holding that parents are entitled to control the
education of their children and that the state may not arbitrarily proscribe
certain areas of instruction).

For this reason, I find the
Collinsgrus to be real parties in interest in this case, who are entitled
to pursue that indivisible concern which is both their own and their
child’s educational goals.

Moreover, this result would
be consistent with the primary purpose of the IDEA—to assure an appropriate
public education to children with disabilities. The focus of the IDEA
rests upon ensuring appropriate educational opportunities for children
with disabilities. But to accomplish this, the Act recognizes the integral
role of parents in effectuating its educational goals. This recognition
is evinced in the language and structure of the Act and in the procedural
safeguards that are included to ensure active parental involvement at
all stages of the development and implementation of a child’s individual
education program.

A key factor in the successful
implementation of the goals of the IDEA are the procedural safeguards
that states and localities are required to accord to "children with
disabilities and their parents or guardians" in order to assure "the
provision of a free appropriate public education." 20 U.S.C. § 1415(a).

The Act requires educational
agencies to provide "an opportunity for parents or guardian of a handicapped
child to examine all relevant records with respect to the identification,
evaluation, and educational placement of the child, and the provision
of a free appropriate public education to such child, and to obtain
an independent evaluation of the child." 20 U.S.C. § 1415(b)(1)(A).

The educational agency must
also provide "written prior notice to the parents or guardian of the
child whenever such agency or unit -- (i) proposes to initiate or change,
or (ii) refuses to initiate or change, the identification, evaluation
or educational placement of the child or the provision of a free appropriate
public education to the child." 20 U.S.C. § 1415(b)(1)(C).

In addition the educational
agency must provide parents with "an opportunity to present complaints
with respect to any matter relating to the identification, evaluation,
or educational placement of the child, or the provision of a free appropriate
public education to such child." 20 U.S.C. § 1415(b)(1)(E).

These protections demonstrate
that Congress envisioned that parents would play an active and informed
role in the evaluation and education of their children. The Senate Committee
report recommending passage of the IDEA’s precursor statute explicitly
states that, [b]y changing the language [of the provision relating to
individualized educational programs] to emphasize the process of parent
and child involvement . . . the Committee intends to clarify that such
individual planning conferences are a way to provide parent involvement
and protection to assure that appropriate services are provided to a
handicapped child. Education for All Handicapped Children Act of 1975,
S. Rep. No. 94-168, at 11-12 (1975), reprinted in, 1975 U.S.C.C.A.N.
1425, 1435.

In interpreting the IDEA,
the Supreme Court has also cautioned that "[t]he primary responsibility
for formulating the education to be accorded a handicapped child . .
. was left by the Act to state and local educational agencies in cooperation
with the parents or guardian of the child." Board of Education v.
Rowley, 458 U.S. 204, 207 (1982). Courts should avoid imposing their
views regarding preferred educational methods. Rather, "Congress sought
to protect individual children by providing for parental involvement
in the development of state plans and policies and in the formulation
of the child’s individual educational program." Id. at 208.

The Act also provides substantial
due process protections in the form of administrative proceedings and
an appeals procedure in the event that parents have complaints regarding
the educational services provided to their children. "The parents or
guardian shall have an opportunity for an impartial due process hearing"
before the local educational agency, 20 U.S.C. § 1415(b)(2), and
for an impartial review on appeal to a state educational agency. 20
U.S.C. § 1415(c) . At these hearings all parties, specifically
parents, are accorded:

(1) the right to be accompanied
and advised by counsel and by individuals with special knowledge or
training with respect to the problems of handicapped children,

(2) the right to present evidence
and confront, cross- examine, and compel the attendance of witnesses,

(3) the right to a written
or electronic verbatim record of such hearing, and

(4) the right to written findings
of fact . . .20 U.S.C. § 1415(d).

Thus, during administrative
proceedings under the IDEA, the Act explicitly envisions that parents
will act as advocates for their child’s right to an appropriate education.

Congress has also taken steps
to ensure the effectiveness of parents as advocates during administrative
proceedings by authorizing the establishment of training centers to
assist parents in understanding their rights and their children’s’ rights
under the Act and to help parents to participate effectively in administrative
due process hearings. 20 U.S.C. § 1415(e)(2)(B)(I). At the conclusion
of all administrative proceedings, the Act provides the right to bring
a civil action in either federal or state court to "[a]ny party aggrieved
by the findings and decision" made during the administrative proceedings.
20 U.S.C. § 1415(e).

Although the language of the
Act clearly delineates an active role for parents during administrative
proceedings under the IDEA, the Act is silent with regard to the nature
of the role of parents during federal court proceedings under the Act.
Thus, it is not clear from the language of the Act whether parents are "aggrieved parties" able to bring a court action on their own behalf,
or whether the right to an appeal belongs to their child or belongs
to both parents and child.

The parents here have asserted
their own claim under the IDEA which is still pending in the District
Court. The District Court, however, denied the parents’ request that
the court clarify which of the claims before it were claims of the parents.
The stated reason for that denial was that the parents sought an advisory
opinion. Nevertheless, despite the absence of explicit language in the
IDEA conclusively determining the role of parents in IDEA appeals, the
purpose and language of the IDEA presuppose the active involvement of
parents in enforcing the educational rights of their children.

Through the IDEA, Congress
gave to all children with disabilities the substantive right to an appropriate
education. Children, however, whether disabled or not, are not able
to evaluate the education they are receiving or to request changes in
the resources and opportunities made available to them. The IDEA reflects
the practical recognition that parents are the persons who are vested
with the authority and the obligation to oversee their child’s education
and to enforce their child’s rights under the Act. The Act also invests
parents with the procedural rights and protections necessary to ensure
that they receive access to the information and resources necessary
to enforce the substantive protections and guarantees of the IDEA.

The Act explicitly defines
the rights of parents during administrative proceedings. See 20 U.S.C.§ 1415. Although the Act does not contain the same explicit definition
of the rights of parents during appeals brought in federal court, there
is evidence that Congress did not intend parental involvement under
the IDEA to be confined to the administrative process. Nor does it make
sense, in the absence of clear Congressional intent, to deny parents,
who are parties with full procedural protections during administrative
proceedings under the Act, the right to challenge the outcome of these
proceedings.

Evidence of congressional
intent regarding the role of parents during federal court proceedings
under the IDEA may be gleaned from the amendment of the Act to include
a fee-shifting provision, authorizing the award of attorneys’ fees to
plaintiffs who prevail in appeals from administrative proceedings. Under
the Act, attorneys’ fees will be awarded "to the parents or guardian
of a child or youth with a disability who is the prevailing party."
20 U.S.C. § 1415(e)(4)(B). Attorneys’ fees will not be awarded
if the parents reject a settlement agreement offering more favorable
relief than is ultimately obtained in the judicial proceedings. 20 U.S.C.
§ 1415(e)(4)(D)(iii). In contrast, "an award of attorneys’ fees
and related costs may be made to a parent or guardian who is the prevailing
party and who was substantially justified in rejecting the settlement
offer." 20 U.S.C. § 1415(e)(4)(E) (emphasis added).

The legislative history of
the fee-shifting provisions states that, "Congress’ original intent
was that due process procedures, including the right to litigation if
that became necessary be available to all parents." Handicapped Children’s
Protection Act of 1986, S. Rep. 99-112, at 2, reprinted at, 1986
U.S.C.C.A.N. 1798, 1799. The Senate Committee Report explicitly states
that the fee-shifting provision should not limit the payment of attorneys’
fees to nonprofit, publicly-funded organizations who provide legal assistance
to parents. Rather, the Committee members endorsed the principle that
"the parents or legal representative of handicapped children must be
able to access the full range of available remedies in order to protect
their handicapped children’s educational rights." Id. at 17, reprinted
at, 1986 U.S.C.C.A.N. at 1806.

In this case, the Collinsgrus
argue that the fee-shifting provisions are insufficient to protect their
interests under the Act. They have not been able to find any attorney
to represent them in the IDEA action. Their only remaining avenue to
protect their son’s educational rights under the Act is to proceed pro
se with their challenge to the administrative denial of special education
benefits.

The right of children to receive
an appropriate education may well be meaningless without parents to
guide the evaluation of their needs and to monitor the implementation
of their individualized education program. The procedural safeguards
afforded to parents under the IDEA, including the right to receive attorneys’
fees, codify the role of parents as the guardians of their children’s
education. In light of the special relationship between parents and
their children and the special role of parents in enforcing their children’s
rights under the IDEA, the right of parents to control the education
of their child and the right of children to receive an appropriate education
are highly interwoven and interdependent.

Accordingly, I conclude that
parents who wish to challenge the outcome of administrative proceedings
under the IDEA are aggrieved parties with the right to bring an appeal
under the Act. Thus, the rights created by the IDEA are effectively
shared by children and their parents. As parties to IDEA proceedings,
pursuant to 28 U.S.C. § 1654, parents should be able to proceed
pro se in IDEA appeals brought in federal court to enforce their own
rights and those of their children.

Moreover, the rights at stake
in an IDEA proceeding are markedly different from those raised by a
tort claim. A child’s common law claim for damages does not invoke the
fundamental rights and interests of a parent in the same manner as a
claim for educational benefits under the IDEA. Indeed, many of the benefits
of an appropriate education will be lost if they are not timely pursued.
Cf. Osei-Afriyie, 937 F.2d at 882 (noting that under Pennsylvania
law, the civil claims of minors are tolled until they reach the age
of 18).

Because parents bear the ultimate
responsibility for guaranteeing their child’s right to an education,
they should be afforded all available opportunities to enforce and protect
that right. I would therefore recognize the right of parents to proceed
pro se in an IDEA case on their child’s behalf, as well as on their
own behalf.

FOOTNOTES

1. Cites to the IDEA will
be to the 1997 version of the Act unless otherwise specified.